De Novotag:blogdenovo.org,2014://122010-10-01T23:34:40ZLaw student weblog, features daily posts and occasional symposia about law and law school.Movable Type 3.21Courtesy of Co-Blogger Chris, a Columbian in Columbustag:blogdenovo.org,2009://12.74192009-04-22T07:17:59Z2010-10-01T23:34:40ZPGhttp://bertrandrussell.blogspot.com]]>
Today / 03.13.08tag:blogdenovo.org,2008://12.74122008-03-13T23:44:03Z2010-02-10T02:28:42ZToday in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865,...PGhttp://bertrandrussell.blogspot.com
Today in History (1862) - The U.S. government forbids all Union army officers from returning fugitive slaves, thus effectively annulling the Fugitive Slave Law of 1850 and setting the stage for the Emancipation Proclamation. On the same day in 1865, the Confederate Congress voted to enlist 300,000 black troops, granting them freedom with the consent of their owners. Lee surrendered a few weeks later.]]>
Good Movies About the War in Iraqtag:blogdenovo.org,2008://12.74112008-03-13T05:12:09Z2010-02-10T02:28:42ZJudging by the Vietnam precedent, wherein the first significant movies like Deer Hunter (1978) and Apocalypse Now (1979) were released after the last American had left (1975), I'm guessing we have a while to wait. In contrast to A Yank...PGhttp://bertrandrussell.blogspot.com
Judging by the Vietnam precedent, wherein the first significant movies like Deer Hunter (1978) and Apocalypse Now (1979) were released after the last American had left (1975), I'm guessing we have a while to wait. In contrast to A Yank in Viet-Nam (1964), To the Shores of Hell (1965) and of course The Green Berets (1968), however, the mediocre films that have been made in the first five years of the current conflict are not pro-war.

UPDATE: At least there are brave filmmakers, including Ben "Bad to the Bone" Stein, to demand tenure and funding for professors who consider themselves competent to declare that evolution didn't occur. The movie's blog refers to PZ Myers as "atheist blogger and fabulist," neglecting to mention that he is an actual biologist. Pity that the filmmakers took a hostile attitude toward Christian intellectual Dr. Francis Collins.

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Mr. Ruloff also cited Dr. Francis S. Collins, a geneticist who directs the National Human Genome Research Institute and whose book, The Language of God: A Scientist Presents Evidence for Belief (Simon & Schuster, 2006), explains how he came to embrace his Christian faith. Dr. Collins separates his religious beliefs from his scientific work only because "he is toeing the party line," Mr. Ruloff said.

Thatís "just ludicrous," Dr. Collins said in a telephone interview. While many of his scientific colleagues are not religious and some are "a bit puzzled" by his faith, he said, "they are generally very respectful." He said that if the problem Mr. Ruloff describes existed, he is certain he would know about it.
Dr. Collins was not asked to participate in the film. Dr. Collins gave the commencement speech at UVa's 2001 graduation, and Mr. Ruloff probably would be confounded by how someone could gently exhort in favor of religion without getting run off a public university's campus.

Decision number two: Well, this is the one that makes people squirm. What are you going to do about faith? Uh oh, not that one. But can there be any more important questions than these: How did we all get here? What is the meaning of life? How is it that we know deep-down inside what is right and wrong and yet rarely succeed in doing what is right for more than about thirty minutes? What happens to us after we die?

Surely these are among the most critical questions in life. And ones which a university should carefully consider. But how much time have you spent on them? Perhaps you, like I, grew up in a home where faith played a significant role, but you never made it your own. Or you concluded it was a fuzzy area that made you uncomfortable. Or even concluded that it was all superstition, like Mark Twain's schoolboy, who when requested to define faith said, 'It is believing what you know ain't so.' Or perhaps you simply assumed that as you grew in knowledge of science that faith was incompatible with a rigorous intellect and that God was irrelevant and obsolete. Well, I am here to tell you that this is not so.

All of those half-truths against the possibility of God have holes in them big enough to drive a truck through, as I learned by reading C.S. Lewis. In my view, there is no conflict between being a 'rigorous, show me the data' physician-scientist and a person who believes in a God who takes a personal interest in each one of us and whose domain is in the spiritual world. A domain not possible to explore by the tools and language and science, but with the heart, the mind and the soul.

Yet, it is remarkable how many of us fail to consider those questions of eternal significance until some personal crisis or advancing age forces us to face our own spiritual impoverishment. Don't make that mistake.

Although I found his speech thoughtful, entertaining, and even musical, the Collinses of the world sadly are not the ones who end up making movies. Despite publicly debating Richard Dawkins and calling Dawkins on his "embittered manifesto of dogmatic atheist fundamentalism," Collins, by virtue of his high stature among biologists, is not an appropriate person to include in a documentary of how Big Science is keeping out smart new ideas.]]>
Here We Go Againtag:blogdenovo.org,2008://12.74102008-03-12T22:30:39Z2010-02-10T02:28:42ZGeraldine Ferraro has taken up Ramesh Ponnuru's cry that one can't criticize Barack Obama without being called a racist. Like Ponnuru, she cheerfully ignores that one only opens oneself to the accusation by bringing up race at all. For example,...PGhttp://bertrandrussell.blogspot.comGeraldine Ferraro has taken up Ramesh Ponnuru's cry that one can't criticize Barack Obama without being called a racist. Like Ponnuru, she cheerfully ignores that one only opens oneself to the accusation by bringing up race at all. For example, McCain's attacks on Obama for being ignorant about Al Qaeda in Iraq have not been countered by saying they are racist. Obviously they're not, because McCain never mentioned race in this criticism, nor at any other time.

Perhaps the one good thing about Republicans' insistence that we should all be color-blind is that their candidates have thus far been quite good about not seeing race in this campaign. Both their praise and criticism of Obama have been for non-racial qualities: his charisma in the plus column, his inexperience and liberalism as minuses. If the Republican nominee can make cutting, sarcastic remarks about Obama without getting into race, I begin to wonder why Obama's opponents within the Democratic Party can't do the same. Obama's campaign is well aware that he needs to win a large percentage of white votes, so they don't bring up race much themselves, because it's not a winning issue for him with undecided white voters. However, if someone else makes any reference to race in a criticism of Obama, then the campaign's asking why race is being raised is logical, because the criticizer did it first.

Thus far, the only significant commentator who I have heard make a wrongful claim of racism has been Orlando Patterson, of whom Ferraro also complained. In a NYTimes op-ed, he questioned why there weren't any black kids in Clinton's 3 AM ad and said, "In my reading, the ad, in the insidious language of symbolism, says that Mr. Obama is himself the danger, the outsider within." While Patterson may be right that the Clinton campaign along with conservatives is trying to portray Obama as an outsider to America, especially white America -- supported only by blacks, unpatriotic, possibly Muslim, etc. -- this specific ad was at most an unconscious attempt to do so. As we've seen over and over with Republicans' amusement that Democrats would run two, TWO minority candidates, many whites' default idea of America is that it's white, and of power is that it's male. Presidential candidates' race and sex only become an "issue" if they're not white males. Even assuming Patterson is correct that none of the children are black (they're so dimly lighted, I couldn't tell), it probably just didn't occur to anyone in the Clinton campaign that it would be nice to show a black kid to communicate that the danger against which Clinton will protect us is a danger to all Americans, regardless of race. It was not an intentional effort to exclude African Americans.

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How Willingness Became Weaknesstag:blogdenovo.org,2008://12.74092008-03-05T18:49:51Z2010-02-10T02:28:42ZMichael Gerson in today's Washington Post engages in a thought experiment in order to conclude that Obama cannot stand by his campaign pledges without becoming a foreign policy failure. Gerson declares that Obama will make an "inaugural pledge to 'pay...PGhttp://bertrandrussell.blogspot.comMichael Gerson in today's Washington Post engages in a thought experiment in order to conclude that Obama cannot stand by his campaign pledges without becoming a foreign policy failure. Gerson declares that Obama will make an "inaugural pledge to 'pay any price, bear any burden, fly any distance to meet with our enemies,'" and that Obama has "made Iranian talks 'without precondition' his major foreign policy goal." Gerson evidently didn't trouble himself to listen to Obama's speeches or even skim the Foreign Policy section of his website. At the top of that page is a quote from the speech that David Brooks recently called the defining moment of Obama's candidacy:]]>
I will end the war in IraqÖ I will close Guantanamo. I will restore habeas corpus. I will finish the fight against Al Qaeda. And I will lead the world to combat the common threats of the 21st century: nuclear weapons and terrorism; climate change and poverty; genocide and disease. And I will send once more a message to those yearning faces beyond our shores that says, "You matter to us. Your future is our future. And our moment is now." And after that quote, there's the first part of Obama's plan: Ending the War in Iraq. Part of this program is that "Obama will launch the most aggressive diplomatic effort in recent American history to reach a new compact on the stability of Iraq and the Middle East. This effort will include all of Iraq's neighbors Ė including Iran and Syria. This compact will aim to secure Iraq's borders; keep neighboring countries from meddling inside Iraq; isolate al Qaeda; support reconciliation among Iraq's sectarian groups; and provide financial support for Iraq's reconstruction."

I'm unclear on how any president thinks he will stem the problem of foreign fighters and arms coming over the Iraqi border, unless he plans either to increase troop levels even further to the point that they can secure the 900 mile border with Iran and the 300 mile border with Syria, or makes an agreement with Iraq and Syria that includes penalties for their non-compliance. Even an erstwhile ally like Turkey has taken to bombing northern Iraq in order to deter rebels' hopes for a Kurdish state. Moreover, Iraq's own leadership appears quite willing to sit down with Ahmadinejad.

Gerson says with regard to Iraq (oddly*, the last topic discussed in his op-ed), "American troops will no longer be embedded in Iraqi combat units or used to combat Iranian influence (all pledges made during his campaign). ... Armed groups of Sunnis and Shiites within Iraq begin preparing for a resumption of sectarian conflict." Yet this was hardly a "no new taxes" type of promise on Obama's part -- he has said he would adjust it if necessary after discussions with senior military leaders:

"As commander in chief, Iím not going to leave trainers unprotected," he said. "In our counterterrorism efforts, I'm not going to have a situation where our efforts can't be successful. If the commanders tell me that they need X, Y and Z, in order to accomplish the very narrow mission that I've laid out, then I will take that into consideration."

This is contrary to Bush's tendency to ignore what his experienced advisers tell him when it doesn't fit with his pre-conception, as with his preference for the Rumsfeld plan, based on the assumption that the Iraqis would welcome U.S. troops with open arms and immediately set about building Iraq into a well-functioning ally of America, to the State Department's warnings about sectarian conflict and the need to secure infrastructure.

Gerson's implication that Obama would leave Iraqis to sectarian genocide is particularly bizarre given that he cites Samantha Power's influence on Obama. Indeed, an actual unconditional pledge Obama has made is, "Yet as we drawdown, we must declare our readiness to intervene with allies to stop genocidal violence."

* I say oddly because Gerson himself is a former Bush speechwriter who was part of the White House Iraq Group that marketed the war to Americans. One might think that he would attack Obama on the Iraq issue first even if Gerson does fantasize that Iran is actually a higher priority than Iraq for Obama.

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The Spreading Confusion About Child Pornographytag:blogdenovo.org,2008://12.74072008-03-03T21:54:14Z2010-02-10T02:28:42ZEchoing the theme of a 2006 lawsuit against Google (which the plaintiff rapidly moved to dismiss), Sen. McCain seems to conflate two distinct problems in the threat posed to human dignity by internet pornography. ... However, there is a darker...PGhttp://bertrandrussell.blogspot.com
Echoing the theme of a 2006 lawsuit against Google (which the plaintiff rapidly moved to dismiss), Sen. McCain seems to conflate two distinct problems in the threat posed to human dignity by internet pornography.

... However, there is a darker side to the Internet. Along with the access and anonymity of the Internet have come those who would use it to peddle child pornography and other sexually explicit material and to prey upon children.
John McCain has been a leader in pushing legislation through Congress that requires all schools and libraries receiving federal subsidies for Internet connectivity to utilize technology to restrict access to sexually explicit material by children using such computers. While the first line of defense for children will always be strong and involved parents, when they send their child to school or drop their child off at the library, parents have the right to feel safe that someone is going to be looking out for their children.

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McCain did introduce the bill that eventually became the Children's Internet Protection Act, and CIPA has survived constitutional challenge. However, I am puzzled as to why McCain's campaign site mentions child pornography and child predation under the heading "Protecting Children from Internet Pornography." Child predators tend to find victims through social sites and applications (MySpace, AIM), not by somehow finding and contacting other users of sexually explicit sites.

The harm that legislators prevent through severe penalties for possession of child pornography is not that other children will see such images, but that children will be used to make the pornography. The Supreme Court struck down the Child Pornography Prevention Act of 1996 for outlawing sexual images that appeared to be of children but were made using adults or through digital manipulation. Even the dissenters in Ashcroft v. Free Speech Coalition premised their argument on the difficulty for prosecutors of distinguishing between real instead of fake child pornography, not on the inherent evil of the latter.

Moreover, CIPA was controversial less for its restrictions on schools than on libraries. The Court managed to uphold the law by getting Kennedy's vote, and his concurrence relied on the government's claim that libraries would remove the filter upon request of any adult user. The idea that "parents have the right to feel safe that someone is going to be looking out for their children" when they "drop their child off at the library" makes little sense. Schools may stand in loco parentis (though only Thomas believes they are not simultaneously state actors), but libraries and other public facilities have no such status. Library staff lack any special relationship to children who enter the premises. Unlike teachers, they have no statutory obligation to report suspected abuse, and expressly disclaim responsibility for any harms children encounter while at the library. Some parents might like to think they can shuffle off responsibility for their children by dropping them at a library -- that, in McCain's words, they have a "right" to do so -- but they cannot.

Child pornography and predation are matters of governmental concern and proper for regulation because they entail obvious harms. "Peddl[ing] ... other sexually explicit material," in contrast, is protected activity no matter how much Republicans may dislike it. McCain cleverly cloaks the conservative antagonism to freedom of sexualized speech in the irreproachable justification of doing it For the Children. He probably realizes that given Americans' level of consumption of online sexual material, he would lose lots of independents' votes by actually stating that pornography in general is inimical to human dignity.

BY THE WAY: For the in-country, non-environmentalist, non-veteran, irreligious straight white male who feels left out by the People categories on Obama's website, the Republican candidate's site offers another option: Lawyers for McCain. McCain is the remaining candidate who isn't a lawyer, and was unusual even within the plausible Republican field (Romney, Giuliani, Thompson) for lacking a law degree.

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After Hiatus, Back to Con Lawtag:blogdenovo.org,2008://12.74062008-03-03T00:19:09Z2010-02-10T02:28:42ZI encountered Erwin Chemerinsky in his professorial (as opposed to author/ litigator/ talking head) capacity for the first time in his videotaped BarBri lecture on constitutional law, one of a few subjects in which none of the lecture felt like...PGhttp://bertrandrussell.blogspot.com
I encountered Erwin Chemerinsky in his professorial (as opposed to author/ litigator/ talking head) capacity for the first time in his videotaped BarBri lecture on constitutional law, one of a few subjects in which none of the lecture felt like it was introducing brand new material, and the first subject in which I could remember the names of the relevant cases as I went through the outline. The lecture helpfully tipped us off to how to apply con law to multiple choice questions; for example, Chemerinsky noted that when the question asks who is the "best plaintiff" out of a group in which no one seems to have standing for certain, the answer is the plaintiff who suffered personal economic loss. Because it's probably the area of bar-tested law that I know best, however, some of the summaries puzzled me.

For example, with regard to third party standing Chemerinsky said that such standing is allowed if there is a close relationship between the plaintiff and the injured third party. His example was the doctor-patient relationship that permitted abortionists to assert their patients' rights to challenge restrictions on abortion. Hence the line of abortion cases that followed Roe mostly have plaintiffs like Planned Parenthood, Dr. Franklin, Akron Center for Reproductive Health, Dr. Simopoulos, American College of Obstetricians and Gynecologists, Dr. Carhart.

But these abortion providers were themselves at risk of criminal prosecution for violating the abortion restrictions, which violations could entail losing one's medical license and serving prison time, as Dr. Simopoulos did. So it was actually the physician plaintiff's liberty or property that was at risk from enforcement, while it was the third party's -- the aborting woman's -- right that was at issue. Similarly, it was the beer vendor in Craig v. Boren whom the Court found to suffer "injury in fact," because she would be punished by the state if she sold to men under 21.

Thus a "close relationship" between the parties is not sufficient. There must be a close relationship between the right sought to be vindicated, and the inability to exercise the right if someone (physician, beer-seller, et al.) will be legally sanctioned for violating the statute. If we flipped the proposals of people like Fred Thompson and punished the abortion-seeker rather than the abortionist, the latter would cease to have standing to bring suit, because he no longer would face any penalties under the law.

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Truth and Reconciliationtag:blogdenovo.org,2008://12.74052008-03-02T23:01:05Z2010-02-10T02:28:42ZFrom Freeman Dyson's excellent NYRB review of Von Braun: Dreamer of Space, Engineer of War, by Michael J. Neufeld: The author of this book condemns von Braun for his collaboration with the SS, and condemns the United States government for...PGhttp://bertrandrussell.blogspot.com
From Freeman Dyson's excellent NYRB review of Von Braun: Dreamer of Space, Engineer of War, by Michael J. Neufeld:

The author of this book condemns von Braun for his collaboration with the SS, and condemns the United States government for covering up the evidence of his collaboration. Here I beg to differ with the author. War is an inherently immoral activity. Even the best of wars involves crimes and atrocities, and every citizen who takes part in war is to some extent collaborating with criminals. I should here declare my own interest in this debate. In my work for the RAF Bomber Command, I was collaborating with people who planned the destruction of Dresden in February 1945, a notorious calamity in which many thousands of innocent civilians were burned to death. If we had lost the war, those responsible might have been condemned as war criminals, and I might have been found guilty of collaborating with them.

After this declaration of personal involvement, let me state my conclusion. In my opinion, the moral imperative at the end of every war is reconciliation. Without reconciliation there can be no real peace. Reconciliation means amnesty. It is allowable to execute the worst war criminals, with or without a legal trial, provided that this is done quickly, while the passions of war are still raging. After the executions are done, there should be no more hunting for criminals and collaborators. In order to make a lasting peace, we must learn to live with our enemies and forgive their crimes. Amnesty means that we are all equal before the law. Amnesty is not easy and not fair, but it is a moral necessity, because the alternative is an unending cycle of hatred and revenge. South Africa has set us a good example, showing how it can be done.

In the end, I admire von Braun for using his God-given talents to achieve his visions, even when this required him to make a pact with the devil. He bent Hitler and Himmler to his purposes more than they bent him to theirs. And I admire the United States Army for giving him a second chance to pursue his dreams. In the end, the amnesty given to him by the United States did far more than a strict accounting of his misdeeds could have done to redeem his soul and to fulfill his destiny.

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Remembering Buckley Accuratelytag:blogdenovo.org,2008://12.74042008-03-01T07:20:02Z2010-02-10T02:28:42Z1. Writing in the New York Times (not National Review, so never mind those who claim to have read it in their subscription) in 1986, he composed a kind of dialogue between School A, the protectors of civil liberties and...PGhttp://bertrandrussell.blogspot.com
1. Writing in the New York Times (not National Review, so never mind those who claim to have read it in their subscription) in 1986, he composed a kind of dialogue between School A, the protectors of civil liberties and privacy, and School B, the protectors of public health (he being in the latter category):

But if the time has not come, and may never come, for public identification, what then of private identification?
Everyone detected with AIDS should be tatooed in the upper forearm, to protect common-needle users, and on the buttocks, to prevent the victimization of other homosexuals.You have got to be kidding! That's exactly what we suspected all along! You are calling for the return of the Scarlet Letter, but only for homosexuals!
Answer: The Scarlet Letter was designed to stimulate public obloquy. The AIDS tattoo is designed for private protection. And the whole point of this is that we are not talking about a kidding matter. Our society is generally threatened, and in order to fight AIDS, we need the civil equivalent of universal military training.

What is good about this column is that the conservative Catholic Buckley acknowledged that "School B does in fact tend to disapprove forcefully of homosexuality." As a public health proposal, it's not worth so much.]]>
The CDC currently estimates that a little over 1 million of the 300 million population of the U.S. has HIV/AIDS, but that a quarter of those do not know they carry it. Buckley still thought his proposal a good idea to put into practice in 2005, when we were quite clear on how HIV is transmitted. Oddly enough, it is an idea that has a better chance of working practically today than it did at the time of Buckley's first suggestion, when HIV was simply a death sentence. in March 1986, GlaxoSmithKline's AZT cocktail would not be submitted for FDA approval for another 8 months -- why would anyone submit to HIV testing that would mark him and provide no benefit?

In his 2005 column, Buckley smugly noted that gay men themselves were calling for more intervention to prevent transmission, yet neglected to mention that the very article he was citing said that this new willingness was born of gay men's trust in the law, which instead of putting them in camps has protected them from discrimination. 1986 Gay Man had Bowers and Buckley's tattoos; 2005 Gay Man had Lawrence and AIDS listed in the ADA. One also might think from Buckley's writings that few measures were taken to stem transmission, yet in 1985, NYC and other cities were closing down establishments identified as permitting sodomy on the premises.

2. One might think, on hearing that the National Review in the 1950s defended Southern states' rights, that this was a high-minded Constitutional position: Buckley simply did not agree with Brown v. Board's claim that the 14th Amendment forbade segregation. Alas, it does not appear to have been that kind of intellectually respectable federalism, but something that reminds one more of the WWII Japanese attitude toward other Asian races -- here are some inferior beings that ought not be in charge of anything until we have raised them to a level more approximating our own.

The central question that emerges--and it is not a parliamentary question or a question that is answered by merely consulting a catalog of the rights of American citizens, born Equal--is whether the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically? The sobering answer is Yes--the White community is so entitled because, for the time being, it is the advanced race. It is not easy, and it is unpleasant, to adduce statistics evidencing the median cultural superiority of White over Negro: but it is fact that obtrudes, one that cannot be hidden by ever-so-busy egalitarians and anthropologists. The question, as far as the White community is concerned, is whether the claims of civilization supersede those of universal suffrage. The British believe they do, and acted accordingly, in Kenya, where the choice was dramatically one between civilization and barbarism, and elsewhere; the South, where the conflict is by no means dramatic, as in Kenya, nevertheless perceives important qualitative differences between its culture and the Negroes', and intends to assert its own.

National Review believes that the South's premises are correct. If the majority wills what is socially atavistic, then to thwart the majority may be, though undemocratic, enlightened. It is more important for any community, anywhere in the world, to affirm and live by civilized standards, than to bow to the demands of the numerical majority. Sometimes it becomes impossible to assert the will of a minority, in which case it must give way, and the society will regress; sometimes the numerical minority cannot prevail except by violence: then it must determine whether the prevalence of its will is worth the terrible price of violence.

The reference to British imperialism reinforces my impression, one shared by David Brooks, that Buckley's soul was Tory.]]>
Today / 02.26.08tag:blogdenovo.org,2008://12.74032008-02-26T23:59:53Z2010-02-10T02:28:42ZHappy birthday to Jeremy Bentham, and welcome to the blawgosphere to Tom Bruce and the rest of the Cornell Legal Information Institute....PGhttp://bertrandrussell.blogspot.com
Happy birthday to Jeremy Bentham, and welcome to the blawgosphere to Tom Bruce and the rest of the Cornell Legal Information Institute.]]>
Bar Exam Hiatustag:blogdenovo.org,2008://12.73982008-02-08T01:01:11Z2010-02-10T02:28:42ZWith less than three weeks left before the February bar exam, I'm going offline until the 28th. Then I'll be posting until March 15 -- the fourth anniversary of De Novo -- when I will stop blogging. My law student...PGhttp://bertrandrussell.blogspot.com
With less than three weeks left before the February bar exam, I'm going offline until the 28th. Then I'll be posting until March 15 -- the fourth anniversary of De Novo -- when I will stop blogging. My law student status technically ceases next Thursday when I graduate, and the bar exam is the last vestige of it. In the interim, I hope to hear from current and future law students who have an interest in blogging and were looking for a good place to do it. I would love to see De Novo continue as an active student blawg.

UPDATE: Why I also will be ceasing to comment on other people's blogs, edit Wikipedia, or otherwise engage in online writing except as encouraged by a salaried position.

If I used to comment regularly at your blog and you actually miss having me rip on your other commenters, please e-mail.

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Religious Voter Guides: The Good, the Questionable, and the "Lawyers Approved That? Really?"tag:blogdenovo.org,2008://12.73972008-02-02T19:52:52Z2010-02-10T02:28:42ZIn order for contributions to it to be tax-deductible, no 501(c)(3) entity can allow a substantial part of its activities to be lobbying, i.e. attempting to influence legislation. I'm not really sure how this works out for, say, the Virginia...PGhttp://bertrandrussell.blogspot.com
In order for contributions to it to be tax-deductible, no 501(c)(3) entity can allow a substantial part of its activities to be lobbying, i.e. attempting to influence legislation. I'm not really sure how this works out for, say, the Virginia chapter of the ACLU, which seems to spend a lot of time on legislation judging by the emails it sends me. Much more clear-cut than the "substantial" test applied for lobbying is the absolute prohibition on 501(c)(3)s from "directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office." It is a fairly easy rule to follow, like the pre-FEC v. WRTL version of the 60-day rule against ads just before an election: you can talk about the issues, just don't mention candidates' names.

The Voter's Guide for Serious Catholics sets a gold standard for religious voter guides. It lays out clearly what the obligations of a Catholic voter are, the Church's stance on various issues and why a candidate may permissibly support invading Iraq but not legalize abortion. (In brief, the ultimate goals of "peace" or "solidarity with the poor" may plausibly be believed achievable through different means, including preemptive war or having aid to the poor go through the private sector rather than government; the ultimate goals of respecting human life or maintaining the moral institution of marriage is not plausibly achievable through abortion, euthanasia, embryonic stem cell research, cloning or same-sex marriage.)

The Catholic Guide also is not specific to a single election. It mentions neither candidates nor parties, only the "non-negotiable" values and general principles of the Catholic faith. If anyone tried to prevent churches from handing out this guide, I'd be happy to work pro bono for the churches to ensure that they retained their 501(c)(3) status. This is exactly what the role of a church in politics ought to be: clarifying for its members what their shared moral commitments are, and urging them to be active in putting those commitments into the polity. I disagree with the Catholic church on every single "non-negotiable" issue except human cloning (I favor the legality of abortion, euthanasia, embryonic stem cell research and same-sex marriage), but they are behaving just as they should in the political sphere. The prefatory statement on the guide, "Nothing in this voter's guide should be construed as an endorsement of any particular candidate or political party," is extraneous.

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Protestant evangelicals are less savvy and far more in need of such disclaimers. Despite the lack of them, the Minnesota Family Institute (associated with James Dobson and Focus on the Family) issued a presidential voting guide that I think is OK for churches because it's not totally obvious about what the appropriate stance on the issue is. For example, on the two more overtly moral issues of Marriage and Stem Cell Research, it frames the query as "Federal Marriage Amendment" and "Public Funding of Human Embryos," and then says whether a candidate "supports" or "opposes." A voter would actually have to stop and think whether he himself supports or opposes each of these. A typical conservative voter probably would support the first and oppose the second. But because of this framing, the guide comes across as educational rather than simply directive.

The IRS says, "voter education or registration activities with evidence of bias that: (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates, will constitute prohibited participation or intervention." The MFI guide dodges a violation of this rule by varying its presentation of issues. Some are ones that the MFI probably thinks candidates should oppose; some are ones that the MFI probably thinks candidates should support. The overall effect is to lay out the information and let voters align themselves.

I first thought about religious voter guides thanks to the American Family Association's emailing me me today:

AFA will not bow down to a threat from a liberal left-wing group

The Rev. Barry Lynn, the executive director of Americans United for Separation of Church and State, has asked that the Internal Revenue Service investigate the American Family Association. Lynn says that AFA has violated IRS rules by distributing a voters guide.

For years, Rev. Lynn and his Americans United, along with groups such as the American Civil Liberties Union and People for the American Way, have used threats to silence Christians in an attempt to take away their First Amendment rights. The tragedy is that he has been successful in silencing thousands of ministers.

Let me make one thing clear to Rev. Lynn and his cohorts. We have no intention of bowing down to his threatening demands. Rev. Lynn is mistaken if he thinks his threat will scare this minister from exercising his First Amendment rights.

Lynn has also included a threat to churches. Trying to scare ministers from exercising their rights, Lynn said: "Any church that distributes these biased guides is risking its tax exemption and casting aside its integrity."

The AFA Voters Guide was developed by three constitutional lawyers and reviewed by three more constitutional lawyers following Rev. Lynn's threat. All agreed that the voters guide is perfectly legal.

The Alliance Defense Fund has offered to represent (free of charge) churches or organizations which distribute the voter's guide and encounter opposition from either Lynn or the IRS.

Thank you for caring enough to get involved. If you feel our efforts are worthy of support, would you consider making a small tax-deductible contribution? Click here to make a donation.

Sincerely,
Donald E. Wildmon, Founder and Chairman American Family Association

I am really curious as to the identity of these constitutional lawyers who OKed the guide before it went out the door*, because it certainly doesn't bespeak the normal caution of a practicing attorney. Like the MFI guide, it lacks a disclaimer and specifies candidate names and non-religious issues, but it is utterly lacking in the MFI's claim to being educational rather than directive. The AFA guide's list of issues is presented as follows:

It's rather clear that the AFA's preferred candidate will answer yes to every question. And what do we have here on the Republican page, but Mike Huckabee with a line of yeses running down the column; what do we have on the Democratic page, but a solid wall of nos from every candidate. It is almost impossible to glance at this guide and not see that it has "evidence of bias that: (a) would favor one candidate over another; (b) oppose a candidate in some manner; or (c) have the effect of favoring a candidate or group of candidates."

The guide may survive its attack -- and in the world of the American Family Association, every move from a liberal group is another reason to send out an email bemoaning its troubles and asking for more money, so perhaps they deliberately tread close to the line of what was permissible. With the war on Christmas in abeyance for the next several months, the AFA's gotta justify its existence and raise donations somehow. Still, in the unlikely event that the AFA spent tax-exempt contributions on lawyers who were supposed to approve this guide to be well within IRS guidelines, Wildmon should ask for the money back.

The IRS explanation of the law is as follows:

Voter Guides
Like other IRC section 501(c)(3) organizations, some churches and religious organizations undertake voter education activities by distributing voter guides. Voter guides, generally, are distributed during an election campaign and provide information on how all candidates stand on various issues. These guides may be distributed with the purpose of educating voters; however, they may not be used to attempt to favor or oppose candidates for public elected office.
A careful review of the following facts and circumstances may help determine whether or not a church or religious
organizationís publication or distribution of voter guides constitutes prohibited political campaign activity:
■ whether the candidatesí positions are compared to the organizationís position,
■ whether the guide includes a broad range of issues that the candidates would address if elected to the
office sought,
■ whether the description of issues is neutral,
■ whether all candidates for an office are included, and
■ whether the descriptions of candidatesí positions are either:
- the candidatesí own words in response to questions, or
- a neutral, unbiased and complete compilation of all candidatesí positions.

The following are examples of situations where churches distribute voter guides.

Example 1: Church R distributes a voter guide prior to elections. The voter guide consists of a brief statement from the candidates on each issue made in response to a questionnaire sent to all candidates for governor of State I. The issues on the questionnaire cover a wide variety of topics and were selected by Church R based solely on their importance and interest to the electorate as a whole. Neither the questionnaire nor the voter guide, through their content or structure, indicate a bias or preference for any candidate or group of candidates. Church R is not participating or intervening in a political campaign.

Example 2: Church S distributes a voter guide during an election campaign. The voter guide is prepared using the responses of candidates to a questionnaire sent to candidates for major public offices. Although the questionnaire covers a wide range of topics, the wording of the questions evidences a bias on certain issues. By using a questionnaire structured in this way, Church S is participating or intervening in a political campaign.

* It presumably was someone at Liberty Counsel, due to the small legend "Approved for 501(c)3 distribution by Liberty Counsel." On their own site, LC links voter guides of varying levels of education rather than direction. The Wallbuilders are identical to AFA; the Florida Family Policy Council identical to MFI; Faith Action's chart has a longer list of issues but follows the same "yes is good, no is bad" format as AFA and Wallbuilders. However, Faith Action's Values Voter reports are much better, as they give the candidates' own words on issues instead of a yes/no format. The best of the lot is Mike Farris's, which does not have such an obvious stance on every issue (his is the only one to include waterboarding, and I honestly can't tell if he's for or against it).]]>
What Bush Does When He Finds Something Really Unconstitutionaltag:blogdenovo.org,2008://12.73962008-02-01T19:00:02Z2010-02-10T02:28:42ZA favorite grudge against Sen. John McCain among conservative leaders and lawyers is that he sponsored campaign finance reform legislation that they deem to be a violation of the core First Amendment right to political speech. Particularly troubling for them...PGhttp://bertrandrussell.blogspot.com
A favorite grudge against Sen. John McCain among conservative leaders and lawyers is that he sponsored campaign finance reform legislation that they deem to be a violation of the core First Amendment right to political speech. Particularly troubling for them was the non-lawyer McCain's supposedly urging his Congressional colleagues who had reservations about the law's constitutionality to vote for it and let the Supreme Court decide which provisions passed constitutional muster.

Due to the unpopularity of judicial power on the right, this is viewed as not only a bad thing to have said about the particular law, but an inherently dangerous view for any member of the other two branches of government to hold. While the courts have judicial review over the constitutionality of legislation and the executive's interpretation of its statutory and constitutional powers, Congress and the President nonetheless swear to uphold the Constitution* and are obliged to act within the bounds of what they understand the Constitution to mean. Simply abdicating all constitutional understanding to the courts is a failure of duty and is particularly alarming to conservatives who fear kritarchy.

McCain's attitude of legislate it all and let SCOTUS sort 'em out stands in particular contrast to the current Republican president. Although Bush signed McCain-Feingold stating his own doubts of its constitutionality, he did not issue a signing statement of the sort he has with legislation that he deems to encroach upon his unitary executive powers. Evidently Congress's abrogating the freedom of speech is something that the courts can be left to figure out, but Congress's mandating that no funds be spent for a "permanent" U.S. military presence in Iraq is something that Bush must declare unconstitutional immediately. And no expecting "that the courts will resolve these legitimate legal questions as appropriate under the law" when it comes to Congress's prohibiting the administration from establishing permanent bases in Iraq or controlling Iraqi oil resources; establishing a congressional commission to review military contracts in Iraq; protecting contractor whistle-blowers; and putting a 45-day deadline on U.S. intelligence agencies to respond to information requests from Congress' committees on intelligence and armed services. Nope, then it's just "The executive branch shall construe such provisions in a manner consistent with the constitutional authority of the President."

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* The Constitution prescribes a specific oath for the president, but not for anyone else. Art. II Sec. 1 states, "Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of the President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'"

In contrast, Art. I doesn't mention any oath. Art. VI says, "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."

The First Congress's version of this requirement was "I do solemnly swear (or affirm) that I will support the Constitution of the United States." I greatly prefer it to the wordy remnant of Civil War suspicions that is used today: "I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."

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Strange Timing by the Columbia Spectatortag:blogdenovo.org,2008://12.73952008-01-31T01:16:36Z2010-02-10T02:28:42ZI'm trying to think of a more inopportune time since the Gujarat riots to publish an opinion piece about how meek and mild Hindus are. I cannot think of a more bizarre moment to make this statement: "Keeping a low...PGhttp://bertrandrussell.blogspot.com
I'm trying to think of a more inopportune time since the Gujarat riots to publish an opinion piece about how meek and mild Hindus are. I cannot think of a more bizarre moment to make this statement: "Keeping a low profile is a manifestation of the non-interventionist mindset that has enabled Hinduism to survive some 8,000 years in spite of assaults like the Muslim invasions, the Goa inquisition, and more recent encroachments like the Gospel Fellowship Trust Indiaís campaign to aggressively convert Dalits and impoverished tribesmen to Christianity."

I guess that either the Columbia Spectator's opinion editors don't keep up with South Asian news, or they're deliberately trying to stir up controversy. An op-ed that makes nasty remarks about converting Dalits (better known in the West as "untouchables") and tribals to Christianity, and implicitly comparing it to invasions and inquisitions, is one way to do it.

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NYC Government: Persian Gulf War Never Endedtag:blogdenovo.org,2008://12.73942008-01-29T03:33:55Z2010-02-10T02:28:42ZIn a list of periods of conflict for determining whether one receives a property tax exemption reserved for veterans, the City of New York gives the following: - World War I: April 6, 1917 - November 11, 1918 - World...PGhttp://bertrandrussell.blogspot.com
In a list of periods of conflict for determining whether one receives a property tax exemption reserved for veterans, the City of New York gives the following: